This paper considers the President’s power to make recess appointments to the federal judiciary. Part I details the long history of judicial recess appointments. Part II considers the arguments in favor of, and against, the constitutionality of such appointments. Part III discusses the mechanics of recess appointments. And Part IV considers the political advantages and disadvantages of such appointments.
Click HERE for an addendum published in December 2007.
Judge, United States Court of Appeals, Fifth Circuit
James C. Ho is a Circuit Judge on the U.S. Court of Appeals for the Fifth Circuit. Before taking the bench on January 4, 2018, he was a partner and co-chair of the national Appellate and Constitutional Law practice group of Gibson, Dunn & Crutcher LLP.
As an appellate litigator for over a decade, including three years as the Solicitor General of Texas, Judge Ho presented 50 oral arguments in federal and state courts nationwide. He won numerous appeals, including three merits cases at the U.S. Supreme Court. He was routinely ranked among the nation’s leading lawyers by Benchmark, Chambers, Law360, The Legal 500, and The National Law Journal, among other publications. His work has been cited favorably by courts at every level of both the federal and state judiciaries. He won a Best Brief Award from the National Association of Attorneys General for every year that he served as solicitor general, and he is the only state solicitor general in history to be invited by the U.S. Supreme Court to express the views of a state.
Judge Ho has served in all three branches of the federal government. On the Senate Judiciary Committee, he served as chief counsel of the Subcommittees on the Constitution and Immigration under Senator John Cornyn. At the Justice Department, he served as Special Assistant to the Assistant Attorney General for Civil Rights and an attorney-advisor at the Office of Legal Counsel. He clerked for Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit and Justice Clarence Thomas of the U.S. Supreme Court.
His record of public service also includes appointments as vice chair of the Federal Judicial Evaluation Committee in Texas and co-chair of the National Asian Pacific American Bar Association Judiciary Committee, and as a member of the U.S. Magistrate Judge Merit Selection Panel for the Northern District of Texas, the U.S. delegation to the United Nations Committee on the Elimination of Racial Discrimination, and the Continuity of Government Commission.
In addition, Judge Ho has served as an Adjunct Professor of Law at the University of Texas School of Law, where he taught seminars on U.S. Supreme Court Litigation and Religious Liberty. He has authored numerous articles in respected law reviews nationwide, including an annual feature on exemplary judicial writing for The Green Bag Almanac & Reader. He previously served as senior editor of The Green Bag and as co-editor of Pub. L. Misc.
Judge Ho graduated from Stanford University with honors and a B.A. in Public Policy in 1995, and the University of Chicago Law School with high honors in 1999. Before law school, he was a legislative aide to California State Senator Quentin Kopp. He and his wife Allyson live in Dallas, Texas, with their twin daughter and son.
Author, The Indispensable Electoral College: How the Founders’ Plan Saves Our Country from Mob Rule and Enlightened Democracy: The Case for the Electoral College
Tara Ross is nationally recognized for her expertise on the Electoral College. She is the author of Why We Need the Electoral College (2019), The Indispensable Electoral College: How the Founders’ Plan Saves Our Country from Mob Rule (2017), We Elect A President: The Story of our Electoral College (2016), and Enlightened Democracy: The Case for the Electoral College (2d ed. 2012). She is also the author of She Fought Too: Stories of Revolutionary War Heroines (2019), and a co-author of Under God: George Washington and the Question of Church and State (2008) (with Joseph C. Smith, Jr.). Her Prager University video, Do You Understand the Electoral College?, is Prager’s most-viewed video ever, with more than 60 million views.
Tara often appears as a guest on a variety of talk shows nationwide, and she regularly addresses civic, university, and legal audiences. She’s contributed to several law reviews and newspapers, including the National Law Journal, USA Today, the Washington Examiner, The Hill, The Washington Times, and FoxNews.com. She’s appeared before institutions such as the Cooper Union, Brown University, the Dole Institute of Politics, and Mount Vernon. She’s appeared on Fox News, CSPAN, NPR, and a variety of other national and local shows.
Tara is a retired lawyer and a former Editor-in-Chief of the Texas Review of Law & Politics. She obtained her B.A. from Rice University and her J.D. from the University of Texas School of Law. She resides in Dallas with her husband and children.
Partner, Davis Polk & Wardwell LLP
Kannon is the head of our Supreme Court & Appellate practice. He has argued 39 cases before the U.S. Supreme Court and has argued more than 150 appeals in courts across the country, including every federal court of appeals and numerous state courts.
Kannon is ranked as a “Star Individual” in appellate law by Chambers USA, where a client notes, “It’s hard to think of enough superlatives to describe his talent, his judgment, his ability, his experience – he is as good as it gets.” Legal 500 U.S. recognizes Kannon in its Hall of Fame for appellate work. A client shares, “His work is the best in the business, and he is a wonderful human being in addition to being a world-class appellate litigator.”
In 2024 and 2022, Kannon was a finalist for the American Lawyer’s “Litigator of the Year” award. He was named “Appellate Litigator of the Year” by Benchmark Litigation in 2021 and was a 2026 finalist for that recognition.
Before entering private practice, Kannon served as an Assistant to the Solicitor General at the U.S. Department of Justice.
